Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments?

Hearing Date: February 1, 2012 12:00 am

Chairman Darrell Issa Hearing Preview Statement

If the United States Senate can pass a bill and send it to the President for his signature, it is clearly not in recess. But a “recess” is exactly what President Obama has argued in justifying four recent appointments.
Today, the committee will assess the answer to that question and others by reviewing the process and law regarding recess appointments made by President Obama and their legal justification.
On January 4, 2012, the President appointed Richard Cordray as Director of the Consumer Financial Protection Bureau and Richard Griffin, Jr., Sharon Block, and Terence F. Flynn as members of the National Labor Relations Board.
These “recess” appointments place Congress and the Executive Branch in uncharted territory because at the time of the appointment, the Senate was holding a series of “pro forma” sessions.” This action has already triggered lawsuits challenging the validity of the appointments and is sure to bring further suits challenging the validity of rules and regulations passed by these federal agencies.
One NLRB member has said there will be a ‘cloud’ over future NLRB actions because “anything they do is going to be subject to being undone, because [it could be successfully argued] they didn’t have the authority to act.” Mr. Cordray told me in previous testimony he has no Plan B if the courts do invalidate his appointment.
This is not a recipe for good government and effective rulemaking—it’s a recipe for Constitutional crisis.
It is my hope that today’s hearing will help us understand this crisis, so that we can act to address its consequences before they land on businesses, employees, job creators and all those governed by two key agencies whose very decisions are now at risk of being invalidated.

Witnesses and testimonies

Name Title Organization Panel Document
The Honorable Mike Lee United States Senator from Utah Panel 1 Document
The Honorable C. Boyden Gray Founding Partner Boyden Gray & Associates Panel 2 Document
Mr. Andrew J. Pincus Partner Mayer Brown Document
Mr. Michael J. Gerhardt Samuel Ashe Distinguished Professor in Constitutional Law University of North Carolina School of Law Document
Mr. David B. Rivkin Partner Baker Hostetler, LLP Document
Mr. Mark A. Carter Partner Dinsmore & Shohl, LLP Document